IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
STATE OF WASHINGTON, ) No. 79147-8-I ) Respondent, ) ) v. ) ) UNPUBLISHED OPINION ALPERT, WAYNE HYMAN, ) DOB: 07/03/1957, ) ) Appellant. )
BOWMAN, J. — A jury convicted Wayne Hyman Alpert of second degree
assault with a deadly weapon and second degree murder while armed with a
firearm, stemming from two separate incidents. Alpert claimed self-defense to
both counts. Alpert argues that the trial court erred by refusing to instruct the jury
that he had no duty to retreat and admitting statements that violated his CrR 3.1
right to counsel. He also assigns error to certain evidentiary rulings and claims
ineffective assistance of counsel. We affirm Alpert’s second degree assault
conviction. But we conclude that the trial court erred in refusing to instruct the
jury that Alpert had no duty to retreat from the confrontation leading to his
conviction for murder in the second degree and admitting statements tainted by
violation of his CrR 3.1 right to counsel. We reverse and remand for retrial on the
second degree murder charge subject to suppression of the evidence obtained in
violation of Alpert’s right to counsel.
Citations and pin cites are based on the Westlaw online version of the cited material. No. 79147-8-I/2
FACTS
On June 11, 2017, Alpert planned to ride the bus to visit his three-year-old
grandson, who lived in an apartment in Marysville with his mother, Ashley
Moffett. He was supposed to meet them at 3:00 p.m. After missing two buses,
Alpert felt tired and frustrated that he would be very late for the visit, and he did
not have a cell phone with him to call Moffett. It was close to 3:00 p.m. when
Alpert finally got on a bus. Alpert asked the driver for help finding his destination.
The driver refused to answer while he was driving. Alpert swore as he walked to
his seat at the very back of the bus. Another passenger, Jeremy Gredvig, asked
Alpert to “calm down” as Alpert passed him. A few minutes later, Alpert walked
back to where Gredvig was sitting and apologized to him for his outburst.
Gredvig “thought everything was . . . cool.”
Alpert and Gredvig got off the bus at the same stop. Gredvig planned to
walk to a nearby park to visit with his daughters, but Alpert approached him and
provoked an argument. The two men started yelling and swearing at each other.
They were about eight feet apart when Alpert pulled out a gun and pointed it at
Gredvig’s face. Alpert cocked the gun and a bullet ejected from the chamber.
Gredvig then walked directly at Alpert, who kept the gun pointed at Gredvig’s
face but backed away until he “ran backwards into” a nearby light pole. Gredvig
warned Alpert that he was going to call the police. As Gredvig reached into his
pocket to get his cell phone, Alpert put away his gun and walked away. Gredvig
called 911.
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Alpert walked to Moffett’s apartment building but was over two hours late
for the visit with his grandson. Moffett’s first-floor apartment was one of seven
units in the building. Alpert knocked on the door of Moffett’s apartment but
nobody answered. He walked around to the back of the apartment to see if
anyone was sitting outside on the patio. The patio was empty and no one
answered when he knocked on the sliding glass door. Alpert decided to leave
his belongings at the back patio and cool off near the side of the building in the
shade. Worried his family would not notice him when they returned, he went to
leave his hat on the front stoop.
Seaton Jeffry Baker lived in an upper floor apartment near Moffett. Baker
was drinking and grilling on his second-floor balcony with his friend and neighbor
Forrest Dalton. They saw Alpert walking around Moffett’s apartment and pacing
“back and forth” in the parking lot. Baker did not recognize Alpert and thought he
was a “transient.” Baker yelled at Alpert to “ ‘get the fuck out of here.’ ” Dalton
told Baker to calm down and Alpert explained to Baker that he knew Moffett and
was there to visit his grandson. Alpert did not immediately leave. Baker told
Dalton, “ ‘This is bullshit. I ain’t putting up with it.’ ” Baker went downstairs to
confront Alpert.
Alpert saw Baker was “upset” and “not happy” so he decided to leave.
Alpert walked back around Moffett’s apartment to the patio and picked up his
belongings. He then returned to the front of the building and saw Baker coming
toward him “pretty quickly.” Alpert began backing away. Baker was “livid,”
yelling and cursing at Alpert. Walking backward, Alpert went back around the
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corner of the apartment building toward the patio. According to Alpert, Baker
said, “ ‘I’m going to snap your neck like a twig.’ ” Alpert told Baker to “ ‘[s]top’ ”
and call 911 while he continued to back away. Baker did not stop.
After turning the corner of the building, Alpert stopped, faced Baker, and
repeated, “ ‘Stop, call 911.’ ” Again, Baker did not stop. Alpert then took out his
gun, pointed it at Baker, and pulled the slide to eject a cartridge as a “warning.”
Baker continued to advance, “like he was going to tackle” Alpert. Alpert shot
Baker at least eight times from about an arm’s length away in the abdomen,
chest, and head. He “just kept shooting until [he] couldn’t shoot” anymore. After
Baker fell to the ground, Alpert went over to see if he could give medical help, but
Baker appeared to be “fatally wounded.” Alpert then retrieved his belongings,
walked out of the apartment complex, and sat on a curb to wait for the police.
Baker died at the scene.
The State charged Alpert with one count of second degree murder of
Baker and one count of second degree assault of Gredvig with firearm
enhancements. Alpert claimed that he acted in self-defense in both instances.
The court held a CrR 3.5 hearing to determine whether it should suppress
Alpert’s statements he made to officers after his arrest. Alpert argued that his
statements were inadmissible under CrR 3.1 and the Fifth Amendment to the
United States Constitution. The court denied Alpert’s motion and entered
findings of fact and conclusions of law.
At trial, Alpert asked the court to instruct the jury that he had no duty to
retreat from his encounters with Gredvig and Baker. The State objected to the
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instruction and requested a first aggressor instruction, arguing Alpert “is not
entitled to a no duty to retreat instruction where there is no evidence that anyone
other than the defendant was the original aggressor.” Alpert opposed giving a
first aggressor instruction. The court denied both Alpert’s request for a no duty to
retreat instruction and the State’s request for a first aggressor instruction.
A jury found Alpert guilty as charged. By special verdict, the jury found
Alpert was armed with a firearm at the time of the commission of the crimes. The
trial court imposed concurrent sentences at the low end of the standard
sentencing range with consecutive firearm enhancements. Alpert appeals.
ANALYSIS
I. No Duty To Retreat Instruction
Alpert contends the trial court’s refusal to give a “no duty to retreat”
instruction prevented him from meaningfully presenting his self-defense claim.
We review the adequacy of jury instructions de novo as a question of law. State
v. Clausing, 147 Wn.2d 620, 626-27, 56 P.3d 550 (2002).
Jury instructions are sufficient when they allow each party to argue its
theory of the case, are not misleading, and properly instruct the jury on the
applicable law. State v. Sibert, 168 Wn.2d 306, 315, 230 P.3d 142 (2010). A
defendant is entitled to an instruction on self-defense if there is “some evidence”
demonstrating self-defense. State v. Walden, 131 Wn.2d 469, 473, 932 P.2d
1237 (1997); State v. Fisher, 185 Wn.2d 836, 848-49, 374 P.3d 1185 (2016). In
considering whether sufficient evidence supports a jury instruction, we view the
evidence in the light most favorable to the proponent of the instruction. Fisher,
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185 Wn.2d at 849. “Jury instructions on self-defense must more than adequately
convey the law. Read as a whole, the jury instructions must make the relevant
legal standard manifestly apparent to the average juror.” Walden, 131 Wn.2d at
473.1 A jury instruction misstating the law of self-defense amounts to an error of
constitutional magnitude that we presume is prejudicial. Walden, 131 Wn.2d at
473.
“[P]ersons acting in self-defense have no duty to retreat when assaulted in
a place they have a right to be.” State v. Redmond, 150 Wn.2d 489, 490, 78
P.3d 1001 (2003). A no duty to retreat instruction is necessary where a jury may
objectively conclude that flight was a reasonable alternative to the use of force.
Redmond, 150 Wn.2d at 495. The court should give the instruction “when
sufficient evidence is presented to support it.” Redmond, 150 Wn.2d at 493.
Failure to provide a no duty to retreat instruction, where supported by some
evidence, is reversible error. Redmond, 150 Wn.2d at 495.
A. Second Degree Murder
Alpert argues that he was entitled to a no duty to retreat instruction in
support of his claim of self-defense to the second degree murder charge. We
agree.
Whether retreat was a reasonable alternative to Alpert shooting Baker was
a central issue at trial. Testimony established that Baker confronted Alpert in
front of Moffett’s apartment. Alpert walked away from Baker and around the
corner of the apartment to the back of the building. Witnesses described the
1 Internal citations omitted.
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back of the building as a large grassy area bordered by a fence and hedges, with
an opening to the west and access to a long pathway that winds around the
apartment complex.
Dalton testified that Baker followed Alpert “about 20 paces behind him.”
Alpert testified that he felt “cornered” in the back of the apartment complex. The
State questioned Alpert extensively about his ability to retreat from Baker. The
prosecutor repeatedly asked Alpert whether he could have gone in a different
direction to get away from Baker.
Q. . . . You said, “[H]e cornered me.” Does that sound like what you said? A. Correct. Q. But you were on a street, you could go right or left or back where you came from or the other direction. Correct? A. Correct. Q. So what did you mean by “cornered”? A. I have no idea.
And in closing argument, the State suggested Alpert had the ability to walk
away from the encounter. The prosecutor told the jury that Alpert “walks three
miles a day, he goes to the batting cage. Suddenly at that very moment he ran
out of gas so he decided to turn around and shoot Mr. Baker.” In rebuttal, the
prosecutor argued Alpert “didn’t have to go back around [the building]. He could
have gone straight, or he could have said to Mr. Baker, I’m going to leave, I’ve
decided to leave.”
The testimony, emphasized by the State’s argument, presented sufficient
evidence for a jury to conclude objectively that flight was a reasonable alternative
7 No. 79147-8-I/8
to shooting Baker. The facts were enough to support Alpert’s request for a no
duty to retreat instruction.
Still, the State contends Alpert was not legally entitled to a no duty to
retreat instruction. It first argues that Alpert was trespassing and did not have a
right to be in the apartment complex common area when Baker confronted him.
Citing In re Personal Restraint of Harvey, 3 Wn. App. 2d 204, 415 P.3d 253
(2018), the State argues, “[I]t is not error to refuse to instruct the jury that the
defendant has no duty to retreat” when “the defendant is not in a place that he
has a right to be.”
In Harvey, the defendant shot and killed two men in the parking lot of an
apartment building. Harvey, 3 Wn. App. 2d at 207. Neither Harvey nor the
victims lived in the building or had an ownership interest in the property. Harvey,
3 Wn. App. 2d at 207. The court noted that “[u]nder Washington common law, a
nonresident must be licensed to enter the common areas of a multiunit dwelling
and the incursion must fall within the scope of that license.” Harvey, 3 Wn. App.
2d at 216. That license may be express or implied. Harvey, 3 Wn. App. 2d at
216; see Singleton v. Jackson, 85 Wn. App. 835, 839-40, 935 P.2d 644 (1997).
The court concluded that because Harvey had neither express nor implied
consent to enter the apartment complex parking lot, he was not “in a place where
he had a right to be, [and] he was not entitled to a no duty to retreat instruction.”
Harvey, 3 Wn. App. 2d at 219.
Here, Moffett expressly invited Alpert to her apartment to visit his
grandson. Although Alpert knew that he was over two hours late, he believed
8 No. 79147-8-I/9
that Moffett could still be home. When he discovered nobody was home, Alpert
decided to rest in the shade near the rear of the apartment to wait for Moffett and
his grandson to return. Before he could do so, Baker confronted him. Unlike
Harvey, Alpert produced “some evidence” to support his theory that he had a
right to be outside Moffett’s apartment when Baker confronted him. See Walden,
131 Wn.2d at 473.
The State next argues that Alpert waived his right to a no duty to retreat
jury instruction because he successfully argued against the State’s request for a
first aggressor instruction. Citing Harvey, the State asserts that Alpert “cannot be
heard to complain when the trial court refuses to give” a no duty to retreat
instruction after he successfully advocates against a viable first aggressor
instruction. Harvey, 3 Wn. App. 2d at 221.
A “first aggressor” instruction explains to the jury that the State may
disprove self-defense “by proving beyond a reasonable doubt that the defendant
provoked the need to act in self-defense.” State v. Grott, 195 Wn.2d 256, 268,
458 P.3d 750 (2020). A first aggressor cannot claim self-defense “because ‘the
aggressor’s victim, defending himself against the aggressor, is using lawful, not
unlawful, force; and the force defended against must be unlawful force, for self-
defense.’ ” State v. Riley, 137 Wn.2d 904, 911, 976 P.2d 624 (1999) (quoting 1
WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 5.7, at
657-58 (1986)). A first aggressor instruction is appropriate “[w]here there is
credible evidence from which a jury can reasonably determine that the defendant
provoked the need to act in self-defense.” Riley, 137 Wn.2d at 909-10.
9 No. 79147-8-I/10
Generally, a viable first aggressor instruction is not compatible with a no
duty to retreat instruction. Harvey, 3 Wn. App. 2d at 221. “[I]f a defendant was
the first aggressor, he cannot rely on the defense of self-defense unless he does
first retreat.” Harvey, 3 Wn. App. 2d at 220. A no duty to retreat instruction “will
misstate the law if it is given in a case where there is evidence that the defendant
was the first aggressor but he or she persuades the trial court not to give a first
aggressor instruction.” Harvey, 3 Wn. App. 2d at 220.
Whether the State produced sufficient evidence to support a first
aggressor instruction is a question of law reviewed de novo. State v. Bea, 162
Wn. App. 570, 577, 254 P.3d 948 (2011). “[W]ords alone do not constitute
sufficient provocation” for a first aggressor instruction. Riley, 137 Wn.2d at 911.
And the provoking act cannot be the actual assault charged. Bea, 162 Wn. App.
at 577; State v. Kidd, 57 Wn. App. 95, 100, 786 P.2d 847 (1990).
Here, the State argued for a first aggressor instruction for Alpert’s murder
charge, but Alpert successfully argued against it. The State claimed it was
entitled to the instruction because Baker’s confrontation with Alpert was only
verbal, and it was Alpert who “put the firearm in play that escalated the situation.”
But testimony from the State’s witnesses describes Baker’s behavior as both
verbally and physically aggressive before Alpert reached for his gun. According
to the witnesses, Baker called down from his balcony to tell Alpert to leave.
Alpert said he was there to visit Moffett. Neighbor Lisa Rodriguez testified that
when Alpert failed to leave, Baker became “nasty.” Dalton told Baker to calm
down and leave Alpert alone. Instead, Baker descended from his apartment to
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confront Alpert. Seeing Baker’s behavior, Dalton was concerned “there was
going to be a problem” and told Rodriguez to call 911. Alpert backed away when
he saw Baker coming toward him. Baker followed Alpert around the building.2
Viewing the testimony in the light most favorable to the State, the
evidence did not support the State’s contention that Alpert was the first
aggressor. Because sufficient evidence did not support the State’s request for a
first aggressor instruction, Alpert did not waive his right to a no duty to retreat
instruction by successfully arguing against it.
The trial court erred in refusing to instruct the jury that Alpert had no duty
to retreat from his encounter with Baker. We reverse Alpert’s second degree
murder conviction and remand for a new trial.
B. Second Degree Assault
Alpert contends he was also entitled to a no duty to retreat instruction for
the assault charge. The State argues again that Alpert waived his right to a no
duty to retreat jury instruction because he successfully argued against the State’s
request for a first aggressor instruction. Because evidence of the assault charge
supports a first aggressor instruction, we agree with the State.
As discussed above, a first aggressor instruction is appropriate when
credible evidence would allow a jury to determine that the defendant provoked
the need to act in self-defense. Riley, 137 Wn.2d at 909-10. “[W]here there is
evidence that the defendant engaged in a course of aggressive conduct, rather
than a single aggressive act, ‘the provoking act can be part of a “single course of
2 The testimony describes Alpert as a “thin,” 60-year-old man with spinal stenosis and severe arthritis, about five feet six inches tall, and Baker as “a pretty big guy” over six feet tall.
11 No. 79147-8-I/12
conduct.” ’ ” State v. Grott, 195 Wn.2d 256, 273, 458 P.3d 750 (2020) (quoting
State v. Sullivan, 196 Wn. App. 277, 290, 383 P.3d 574 (2016)).
Gredvig testified that he heard Alpert “running his mouth” after getting off
the bus. Alpert was not directly facing Gredvig but he was making a “come on”
or beckoning motion. Alpert also flipped off Gredvig. When Alpert turned and
made eye contact, Gredvig “realized” Alpert was trying to engage him. Gredvig
started to get angry and asked Alpert if he really wanted to have an altercation on
a public corner in “broad daylight.” The two men swore at each other while
walking down the street.
Gredvig had planned to walk to the park but decided to follow Alpert
because he wanted to find out why Alpert was acting hostile toward him. Alpert
was agitated and “egging” on Gredvig to a confrontation. Alpert took off his coat,
dropped all his belongings on the ground, reached down, and pulled out a gun.
Gredvig continued walking forward and Alpert chambered a round in the gun.
Gredvig said he was standing about eight feet away when Alpert “cocked” the
gun and a “bullet flew out.”
Viewing this evidence in a light most favorable to the State, a jury could
determine that Alpert engaged in an aggressive course of conduct toward
Gredvig, provoking the need to act in self-defense. See Grott, 195 Wn.2d at 273.
Because sufficient evidence supported the State’s request for a first aggressor
instruction and Alpert successfully argued against it, he cannot “complain” that
the trial court refused to instruct the jury that he had no duty to retreat. See
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Harvey, 3 Wn. App. 2d at 221. The trial court did not err in its refusal to provide a
no duty to retreat instruction as to the assault charge.
II. CrR 3.1 Right to Counsel Violation
Alpert argues the trial court improperly admitted evidence in violation of
his CrR 3.1 right to counsel. The State claims Alpert’s request for counsel was
equivocal and any error was harmless. We conclude that Alpert unequivocally
invoked his right to counsel and that the evidence tainted by the violation of
Alpert’s CrR 3.1 right to counsel must be suppressed. But we also conclude that
overwhelming untainted evidence led to harmless error related to Alpert’s
conviction for second degree assault of Gredvig.
We review challenged findings of fact from an evidentiary hearing for
substantial evidence and review de novo whether the findings of fact support the
trial court’s conclusions of law. State v. Pierce, 169 Wn. App. 533, 544, 280 P.3d
1158 (2012). Unchallenged findings of fact are verities on appeal. Pierce, 169
Wn. App. at 544.
CrR 3.1 creates a right to counsel “ ‘beyond the requirements of the
Constitution.’ ” State v. Templeton, 148 Wn.2d 193, 211, 59 P.3d 632 (2002)
(quoting Heinemann v. Whitman County Dist. Court, 105 Wn.2d 796, 802, 718
P.2d 789 (1986)).3 Under CrR 3.1(b)(1), the right to a lawyer accrues “as soon
as feasible” after a defendant is “taken into custody.” “At the earliest opportunity
3 Alpert also claims violation of his Fifth Amendment right to counsel. Because any statements challenged under the Fifth Amendment would be the same as those tainted by the CrR 3.1 violation, we do not reach that issue.
13 No. 79147-8-I/14
a person in custody who desires a lawyer shall be provided access” to
communicate with an attorney. CrR 3.1(c)(2).
The request for an attorney must be unequivocal. Pierce, 169 Wn. App. at
545. “That is, the suspect ‘must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in the circumstances would
understand the statement to be a request for an attorney.’ ” State v. Nysta, 168
Wn. App. 30, 41, 275 P.3d 1162 (2012) (quoting Davis v. United States, 512 U.S.
452, 459, 114 S. Ct. 2350, 129 L. Ed. 2d 362 (1994)). Although the request for
counsel must be unequivocal, a suspect “need not rely on talismanic phrases or
‘any special combination of words’ ” to invoke his rights. Bradley v. Meachum,
918 F.2d 338, 342 (2d Cir. 1990) (quoting Quinn v. United States, 349 U.S. 155,
162, 75 S. Ct. 668, 99 L. Ed. 964 (1955)). After an unequivocal request, officers
must make “ ‘reasonable efforts’ ” to connect the defendant with an attorney.
State v. Pierce, 169 Wn. App. 533, 548, 280 P.3d 1158 (2012)4 (quoting State v.
Kirkpatrick, 89 Wn. App. 407, 414, 948 P.2d 882 (1997)).
Here, Marysville police arrived at the apartment building shortly after
Alpert shot Baker. Detective Craig Bartl questioned Alpert while standing “in the
street” at the scene. Detective Bartl read Alpert Miranda5 warnings. Alpert
waived his rights, agreed to speak to the detective, and gave Detective Bartl
permission “to audio record” their conversation. But after about five minutes of
questioning, Alpert announced, “I’m just going to be quiet now, cuz my attorney is
4 Emphasis omitted. 5 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
14 No. 79147-8-I/15
named Michael J. Longyear. He’s at 801 2nd Avenue. 1415 Norton Building.”
Detective Bartl asked, “So are you done talking?” Alpert replied, “Yes sir.”
Detective Bartl again asked Alpert for his name and then terminated the interview
because Alpert “invoked his . . . Constitutional Rights.” Officers placed Alpert in
the back of a patrol car. Detective Bartl did not tell other officers that Alpert had
invoked his rights or attempt to put Alpert in contact with an attorney.
After an evidentiary hearing, the trial court determined that Alpert “did not
unequivocally ask to speak to an attorney at all at any point” and that Detective
Bartl did not need to make reasonable efforts to connect Alpert with counsel. But
the record shows that Alpert clearly communicated that he would not answer any
more questions and gave Detective Bartl the name and contact information for
his attorney. A reasonable officer would understand that a person who invokes
their right to remain silent and provides the name and contact information for an
attorney while being detained and questioned is expressing a desire to speak
with that attorney. Indeed, in the transcript of the recorded interview, Detective
Bartl acknowledged that Alpert “invoked his . . . Constitutional Rights” and
terminated the interview. Yet the detective made no effort to connect Alpert with
an attorney as required by CrR 3.1. The record does not support the trial court’s
conclusion that Alpert’s request for counsel was equivocal.
“Where there is a violation of the [CrR 3.1] right to counsel, the remedy is
suppression of evidence tainted by the violation.” State v. Copeland, 130 Wn.2d
244, 282, 922 P.2d 1304 (1996). In determining whether statements obtained in
violation of CrR 3.1 are tainted, “we presume a lawyer would have told [a criminal
15 No. 79147-8-I/16
defendant] to remain silent: ‘[A]ny lawyer worth his [or her] salt will tell the
suspect in no uncertain terms to make no statement to police under any
circumstances.’ ” Kirkpatrick, 89 Wn. App. at 4146 (quoting Watts v. Indiana, 338
U.S. 49, 59, 69 S. Ct. 1357, 93 L. Ed. 1801 (1949) (Jackson, J., concurring)).
Alpert made several statements to officers about his interaction with Baker after
he invoked his right to counsel. We remand to the trial court to identify and
suppress for retrial the statements related to Alpert’s murder charge that were
tainted by the violation of his right to counsel under CrR 3.1.
Alpert also made statements related to his assault of Gredvig. Detective
Chris Jones testified that while at the hospital for injuries sustained from contact
with the K-9 officer, Alpert made comments “about [how] the bus driver wanted
him to sit down, and there was some type of argument where someone else
intervened.” These statements were tainted by the violation of Alpert’s CrR 3.1
right to counsel.
After identifying evidence tainted by a CrR 3.1 violation, we engage in a
harmless error analysis. State v. Templeton, 148 Wn.2d 193, 220, 59 P.3d 632
(2002). “A violation of a court rule is harmless if there is no reasonable
probability that the error materially affected the outcome of the trial.” State v.
Scherf, 192 Wn.2d 350, 375, 429 P.3d 776 (2018). Because we reverse and
remand Alpert’s murder conviction on separate grounds, our harmless error
analysis is limited to Alpert’s second degree assault conviction.
6 Second alteration in original.
16 No. 79147-8-I/17
The State provided extensive untainted evidence in support of the second
degree assault charge. The bus cameras captured much of Alpert’s interaction
with Gredvig and the court admitted the videos as evidence at trial. The videos
show Gredvig leave through the front of the bus and Alpert exit through the rear,
yelling, “Fucking dumbasses” as he steps off the bus. Alpert is behind Gredvig
as both men walk up the street in the same direction. Gredvig pauses to look
behind him, and Alpert quickly walks around him and flips off Gredvig during a
visibly hostile exchange as both keep walking, Gredvig now behind Alpert. The
videos show Alpert cross the street, turn the corner, and Gredvig follows. Both
men move off-camera. Then Alpert reappears in the videos, walking backward
until he hits a light pole, pointing a gun at Gredvig. Gredvig is facing Alpert and
appears to be holding a cell phone.
Alpert testified about his hostile exchange with Gredvig. He said that he
flipped off Gredvig, who then threatened to “kick [his] ass.” According to Alpert,
Gredvig walked toward him and Alpert fell to the ground. While on the ground,
Alpert reached into his pocket, put a magazine in his gun, and pulled out his gun.
Alpert stood up and warned Gredvig to stop coming toward him as he backed
into the pole. When Gredvig failed to stop, Alpert raised the gun “indexed”7 and
“ratchet[ted]” a round.
Gredvig testified that Alpert reached into his belongings and pulled out a
gun. He then pointed the gun toward Gredvig’s face and a “bullet flew out.”
Gredvig’s daughter was standing on the opposite side of the street, waiting for
7 Alpert testified that “indexed” means “a two-hand grip with my [index] finger alongside outside the trigger guard,” not on the trigger.
17 No. 79147-8-I/18
her father. She testified that she remembered Alpert and Gredvig “arguing.” She
saw Alpert drop his belongings on the ground, reach inside, pull out a gun, and
point the gun at Gredvig. An independent witness testified to an “angry
conversation” between Alpert and Gredvig. And another witness testified that
Alpert was “clearly irate.” Both witnesses said that Alpert had a gun.
There is no reasonable probability that Alpert’s tainted statements to
police affected the outcome of the second degree assault charge. Trial
testimony from Alpert, Gredvig, and other witnesses, combined with the bus
videos, was overwhelming untainted evidence supporting his conviction. See
Scherf, 192 Wn.2d at 375.
III. Evidentiary Issues
Alpert alleges two evidentiary errors require reversal of his second degree
assault conviction.
A. Washington Privacy Act (WPA), Chapter 9.73 RCW
1. Waiver
Alpert claims the WPA precluded admission of his recorded police
interview with Detective Bartl because the recording does not include the
detective informing Alpert of his constitutional rights.8 The State contends Alpert
waived any error because he failed to object to the recording on those grounds at
trial. We agree with the State.
We may refuse to review any claim of error not raised in the trial court.
RAP 2.5(a). “[A] litigant cannot remain silent as to claimed error during trial and
8 Under RCW 9.73.090(1)(b)(iii), video recordings made of arrested persons by police officers must include the arrested person being “fully informed of his or her constitutional rights.”
18 No. 79147-8-I/19
later, for the first time, urge objections thereto on appeal.” State v. Guloy, 104
Wn.2d 412, 421, 705 P.2d 1182 (1985). An appellate court may review an error
for the first time if the alleged error was manifest, affecting a constitutional right.
See State v. O’Hara, 167 Wn.2d 91, 97, 217 P.3d 756 (2009). “[T]he error must
be ‘manifest’ and truly of constitutional dimension.” State v. Kirkman, 159 Wn.2d
918, 926, 155 P.3d 125 (2007).
Alpert argued below that his recorded statements were inadmissible under
CrR 3.1. He did not challenge the recording under the WPA. Admission of
evidence in violation of the WPA is a statutory violation and does not affect a
constitutional right. State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139
(1980). Because the admission of evidence is not of constitutional magnitude,
we will not review it for the first time on appeal. Alpert waived his claim of error
under the WPA.
2. Ineffective Assistance of Counsel
Alpert argues his attorney’s failure to object to the admission of his
recorded interview under the WPA amounts to ineffective assistance of counsel.
We disagree.
To prevail on a claim of ineffective assistance of counsel, a defendant
must show (1) deficient performance and (2) prejudice. State v. Hendrickson,
129 Wn.2d 61, 77-78, 917 P.2d 563 (1996). We need not “address both
components of the inquiry if the defendant makes an insufficient showing on
one.” Strickland v. Washington, 466 U.S. 668, 697, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984). “If it is easier to dispose of an ineffectiveness claim on the ground of
19 No. 79147-8-I/20
lack of sufficient prejudice, . . . that course should be followed.” Strickland, 466
U.S. at 697. A defendant alleging ineffective assistance of counsel shows
prejudice when there is a reasonable probability that but for counsel’s error, the
result of the trial would have been different. Hendrickson, 129 Wn.2d at 78.
Even without Alpert’s recorded interview, the State presented extensive
evidence about the assault of Gredvig. As discussed above, Alpert testified
about the angry altercation and pointing his gun at Gredvig. Gredvig discussed
Alpert’s aggressive behavior and being held at gunpoint. Gredvig’s daughter and
two other witnesses testified that Alpert was angry and pointed his gun at
Gredvig. Finally, the bus videos also captured Alpert’s belligerent behavior and
Alpert pointing his gun at Gredvig’s face. Given the testimony at trial and the bus
videos, exclusion of Alpert’s recorded statement would not have altered the
outcome of the trial. Because Alpert cannot show prejudice, counsel was not
ineffective.
B. Impeachment Evidence
Alpert contends the trial court improperly excluded impeachment evidence
offered to show Gredvig’s bias. We disagree.
We review a trial court’s decision to admit or exclude evidence for abuse
of discretion. State v. Gunderson, 181 Wn.2d 916, 922, 337 P.3d 1090 (2014).
A trial court abuses its discretion when a decision is manifestly unreasonable or
based on untenable grounds or reasons. Gunderson, 181 Wn.2d at 922. We
review a court’s limitation on the scope of cross-examination for manifest abuse
of discretion. State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002).
20 No. 79147-8-I/21
Both the federal and state constitutions guarantee the right to confront and
cross-examine adverse witnesses. U.S. CONST. amend VI; WASH. CONST. art. I, §
22; Darden, 145 Wn.2d at 620. Yet the right to cross-examination is not
absolute. Darden, 145 Wn.2d at 620. “The confrontation right and associated
cross-examination are limited by general considerations of relevance.” Darden,
145 Wn.2d at 621. A trial court may reject lines of questions “that only remotely
tend to show bias or prejudice.” State v. Kilgore, 107 Wn. App. 160, 185, 26
P.3d 308 (2001). But the more important the witness is for the prosecution’s
case, the more latitude the defense should have to explore issues of motive,
bias, and credibility. Darden, 145 Wn.2d at 619.
Gredvig testified that he encountered Alpert on his way to visit his
daughters at a nearby park. On cross-examination, Gredvig admitted that in
June 2017, he did not have custody of his daughters because he “was in the
middle of a CPS[9] case.” Alpert’s attorney sought to impeach Gredvig with
evidence that he was close to regaining custody of his daughters, arguing it
showed bias and motive for his testimony. The attorney explained, “I think in the
eyes of CPS, it’s very different if he’s chasing someone and instigating a physical
fight than if he’s the victim.”
The trial court concluded the evidence was not relevant. The judge did
not “see what potentially the CPS involvement would have to do [with] whether
he’s about to get his child back” in a “situation like this, where it does not appear
this was a thought-out situation.” The court also noted that its experience with
9 Child Protective Services.
21 No. 79147-8-I/22
dependency proceedings did not support Alpert’s argument that the incident
would impact Gredvig’s CPS case.
That Gredvig had almost regained custody had some probative value.
Even so, we will not find an abuse of discretion just because we may have
decided the issue differently. L.M. v. Hamilton, 193 Wn.2d 113, 134-35, 436
P.3d 803 (2019). The trial court exercised its broad discretion to exclude
evidence of remote probative value. We cannot say that the court made this
decision on untenable grounds or for untenable reasons.
IV. Cumulative Error
Alpert argues that cumulative error undermined the fairness of his trial.
Because we reverse Alpert’s second degree murder conviction, we consider this
claim as to only the second degree assault conviction.
The cumulative error doctrine requires reversal when the combined effect
of several errors denies the defendant a fair trial. State v. Weber, 159 Wn.2d
252, 279, 149 P.3d 646 (2006). The doctrine does not apply when “the errors
are few and have little or no effect on the outcome of the trial.” Weber, 159
Wn.2d at 279. The trial court erred by admitting evidence obtained in violation of
Alpert’s CrR 3.1 right to counsel but, as described above, the error was harmless
and did not affect the outcome of the trial. Cumulative error did not undermine
the fairness of Alpert’s trial.
We affirm Alpert’s conviction for second degree assault of Gredvig but
reverse his conviction for second degree murder of Baker and remand for a new
22 No. 79147-8-I/23
trial subject to suppression of the evidence tainted by the violation of Alpert’s
WE CONCUR: